Can the prosecution call a hostile witness in a criminal defense trial? 41 Answers as of July 11, 2013

The accused does not want to take the stand. But she is also a witness to the crime of which she is accusing her father, cover-up of a crime. Can the prosecution call her as a hostile witness to that crime?

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Law Offices of John Carney
Law Offices of John Carney | John Carney
The DA can subpoena any witness to testify. If they believe that answering a question will subject them to criminal charges they can take the Fifth Amendment and refuse to answer the question. The DA can offer immunity and then they must answer the question. If they do not show up they can be held in jail as a material witness and stay in jail until they agree to testify. A hostile witness can be treated as an opponent's witness and asked leading questions as opposed to direct questions that are allowed for your own witness.
Answer Applies to: New York
Replied: 7/24/2011
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
This response is general information only and does not establish an attorney client relationship. However, I would need more information to determine inb your case if the prosecution can call her as a hostile witnes since the answer depends on al the facts and circumstances.
Answer Applies to: New York
Replied: 7/5/2011
Jonathan S. Willett Attorney at Law
Jonathan S. Willett Attorney at Law | Jonathan S. Willett
Yes they can unless she is invoking her right against self incrimination.
Answer Applies to: Colorado
Replied: 7/5/2011
Law Office of James A Schoenberger
Law Office of James A Schoenberger | James A Schoenberger
Yes, the prosecution can call a witness who does not wish to testify.
Answer Applies to: Washington
Replied: 7/5/2011
Thomas J. Tomko Attorney At law
Thomas J. Tomko Attorney At law | Thomas J. Tomko
Generally, not in the same trial. And if the testimony could implicate her, then she should take the 5th amendment It is best to have her attorney go over the details and to plan how to raise any objections to testifying.
Answer Applies to: Michigan
Replied: 7/5/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    If she is a defendant, she cannot be compelled to take the stand and give testimony if she chooses not to. If the questions are not dealing with the crime she is accused of committing or in her trial, she could be subpoenaed as a hostile witness.
    Answer Applies to: Kansas
    Replied: 7/1/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Yes, and if she refuses to testify can be held in contempt of court. There are exception to that including for a victim of a sex or domestic violence crime. If the accused truly wishes to take the chances of these consequences she should contact and retain an attorney of her own.
    Answer Applies to: California
    Replied: 7/1/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    If the testimony could incriminate her in a crime then no she cannot be made to testify. This question is very fact specific an you should consult with an attorney.
    Answer Applies to: Michigan
    Replied: 7/1/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    The State may call an adverse witness if they choose to do so. That person, if they may incriminate themselves on account of testifying, should retain counsel or request appointed counsel, and they have a right to stand on their Fifth Amendment rights.
    Answer Applies to: Alabama
    Replied: 7/1/2011
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    The defendant can never be forced to take the stand in her own trial. The right to remain silent trumps anything else. If this person is called to the stand in another trial, she can still assert her right to remain silent. She simply takes the stand, states her name, and then when questioning begins she asserts her 5th amendment rights. This should be done outside of the presence of the jury. However, if she takes the stand in the other trial and waives her 5th amendment right to silence, that statement can be used against her in her own trial. That is exactly why she is entitled to take the 5th.
    Answer Applies to: Missouri
    Replied: 7/1/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Of course. Thats what subpoenas are for. She can hire an attorney to try to help resolve this. If she is serious about doing so, and if this is in SoCal courts, feel free to contact me.
    Answer Applies to: California
    Replied: 7/1/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Yes, they can "call" her as a witness, but they cannot make her testify. This is a very thin line. Based on your question, if she testifies, she would (or is at this time) subject to prosecution for the matters she is being called to testify about. Her 5th Amendment Right is greater than the District Attorney's right to compel witnesses to attend and give testimony. The witness needs to have her attorney there at the trial to plead the 5th.
    Answer Applies to: Texas
    Replied: 6/30/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    The situation is difficult to understand. An accused cannot be made to testify by anyone.
    Answer Applies to: California
    Replied: 6/30/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    The accused can never be called to testify in their case.
    Answer Applies to: Nebraska
    Replied: 6/30/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    You need to run these questions by her criminal defense lawyer, and if she does not have one give us a call to discuss retention of our office.
    Answer Applies to: New York
    Replied: 6/30/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    She has a right not to incriminate herself, but she can be forced to testify about matters that she witnessed if it does not incriminate her.
    Answer Applies to: Washington
    Replied: 6/30/2011
    Frances R. Johnson
    Frances R. Johnson | Frances R. Johnson
    It depends upon the exact sequence of when the accused's trial is and the apparent trial you're referring to. You need a conversation with an attorney who can ask questions to clarify your situation to receive a response that addresses your question.
    Answer Applies to: Colorado
    Replied: 6/30/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    The DA cannot call the defendant to the stand. This would be a violation of the fifth amendment.
    Answer Applies to: California
    Replied: 6/30/2011
    Ferguson & Ferguson
    Ferguson & Ferguson | Randy W. Ferguson
    Yes. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Alabama. Responses are based solely on Alabama law unless stated otherwise.
    Answer Applies to: Alabama
    Replied: 7/11/2013
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    Generally, in Georgia, the prosecutor may NOT call the defendant as a witness, but, generally, the prosecutor may subpoena and call anyone else as a witness, even if they are hostile, i.e. not very cooperative. We recommend that you retain your own criminal defense attorney and discuss these and all other issues with him or her. Good luck!
    Answer Applies to: Georgia
    Replied: 6/30/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    She may be able to be called as a witness but that does not cause her to lose her 5th Amendment right against self incrimination. If her testimony would implicate her in a crime she can refuse to answer based on her 5th Amendment rights. She should seek legal counsel to assist her in this matter.
    Answer Applies to: Michigan
    Replied: 6/30/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    No. She is the one on trial and she does not have to prove her innocence; the prosecution has to prove her guilt beyond a reasonable doubt. It is common for a defendant's defense to involve accusing someone else of an offense. As galling as that may be, the defendant is the one fighting for her freedom, not her father.
    Answer Applies to: California
    Replied: 6/30/2011
    The Law Office of Eric R. Chandler, P.C., L.L.O.
    The Law Office of Eric R. Chandler, P.C., L.L.O. | Eric R. Chandler
    Yes, a prosecutor can call a witness that does not want to cooperate; however, the prosecution cannot call a witness with the sole intention of impeaching them.
    Answer Applies to: Nebraska
    Replied: 6/30/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    The State can NEVER call a defendant to the stand to testify. The choice of whether or not to testify in a criminal case is the defendant's alone. Even her lawyer is supposed to do as the defendant instructs (after being admonished by the lawyer.)
    Answer Applies to: Texas
    Replied: 6/30/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Absolutely not. She is protected by the 6th Amendment from being a witness against herself.
    Answer Applies to: California
    Replied: 6/30/2011
    The English Law Firm
    The English Law Firm | Robert English
    She can be called as a witness to someone else's crime if it is charged in a different case. However, if her testimony would tend to incriminate her in her case, then she can plead the 5th, which means she would not have to testify as to those issues.
    Answer Applies to: California
    Replied: 6/30/2011
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    The question doesn't make sense. Do you have an attorney? No, then you better retain an attorney. Yes, then ask the attorney who is familiar with the case. The answer is super complex: (1) the prosecution can call anyone as a witness; (2) if the witness does not have a recognized privilege (like marital spouse), then the witness must testify or be held in contempt, unless the witness can assert his 5th amendment privilege; (3) if the witness asserts his 5th amendment privilege, the prosecutor will typically respond by granting the witness immunity, in which case the witness must testify or be held in contempt; (4) the length of the contempt is complicated by the fact that the jury is typically empanelled. Did you understand that answer? Probably not, because most attorney that do not try cases do not understand that answer. You need to hrie an attorney that can answer your questions.
    Answer Applies to: Georgia
    Replied: 6/30/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    Perhaps. A 'hostile' witness just means that the party who calls the witness can ask leading questions like "Isn't it true that on the night of April 12 you saw, " rather than ", What did you see on the night of April 12?" It sounds dramatic, but it's not very important whether a witness is hostile. But if the testimony would incriminate the witness, then the witness can refuse to testify, in that person's trial or someone else's. Courts will often appoint counsel for witnesses if self-incrimination is possible.
    Answer Applies to: Oregon
    Replied: 6/30/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    The accused can never be made to take the stand in their own trial. That decision is up to the defendant and the defendant alone. If the accused is also a witness in another case and another trial, then the prosecutor can call that person to the stand. The prosecution can subpoena anyone except the accused.
    Answer Applies to: Michigan
    Replied: 6/30/2011
    The Woods Law Firm
    The Woods Law Firm | F.W. Woods Jr.
    Yes. The prosecution can call a hostile witness in a criminal trial.
    Answer Applies to: South Carolina
    Replied: 7/11/2013
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Yes. A prosecutor may subpoena any person as witness and compel them to testify whether they are willing or not.
    Answer Applies to: Minnesota
    Replied: 6/30/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    It depends, if she has criminal liability she may assert a right to refuse questions. She should consult a lawyer.
    Answer Applies to: New Hampshire
    Replied: 6/30/2011
    Alanna D. Coopersmith, Attorney at Law
    Alanna D. Coopersmith, Attorney at Law | Alanna D. Coopersmith
    There is nothing stopping the prosecution from calling a hostile witness - any party can call any witness, even a witness who does not want to testify. However, when a person is called to testify, and and her testimony could incriminate herself, she can assert her Fifth Amendment privilege against self-incrimination and refuse to answer the question.
    Answer Applies to: California
    Replied: 6/30/2011
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    Yes. If subpoenaed, she has to take the stand. When she does, she is free to answer or not answer the questions as she sees fit. The best advice is for her to contact her own lawyer before being subpoenaed or called as a witness.
    Answer Applies to: California
    Replied: 6/30/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    It depends on her role in the trial. If she is the defendant, the State cannot compel her to testify. If her testimony in any way would incriminate her she cannot be compelled to testify. If she is the victim of a crime or a material witness AND she is not a defendant in the case she can be compelled to testify against the defendant unless she has a testimonial privilege such as husband-wife. She may also refuse to answer any questions about confidential statements such as those made to a doctor by a patient. It all boils down to what "hat" she is wearing in the trial.
    Answer Applies to: Washington
    Replied: 6/30/2011
    Law Office of Michael Brodsky
    Law Office of Michael Brodsky | Michael Brodsky
    The prosecution can and in serious case will call a "hostile" witness against their will to testify in a criminal trial. In some instances they can even ask for the issuance of a "material witness warrant" for the arrest of an uncooperative witness who refuses to appear to testify. A good defense lawyer can try to fight that or at least bring that out to the defendant's advantage.
    Answer Applies to: Washington
    Replied: 6/30/2011
    The Chastaine Law Office
    The Chastaine Law Office | Michael Chastaine
    If you are a defendant you can not be called as a witness by the prosecution without your agreement.
    Answer Applies to: California
    Replied: 7/11/2013
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    A defendant cannot be forced to testify at her own trial but can at someone else's. It is possible that she can invoke the fifth amendment at her father's trial but you didn't give enough facts.
    Answer Applies to: New York
    Replied: 6/30/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Christopher Lee
    A person can be subpoenaed to testify at trial by any party, including the prosecution. However, a person can argue they were not properly served with a subpoena. In most cases, a person must be served personally with a subpoena in order to be compelled to appear in court and testify. However, if a person is accused of a crime, he or she is not required to testify. (Fifth Amendment right against self incrimination under the US Constitution.) The accused may be subpoenaed to testify and while on the stand, he or she can invoke his or her Fifth Amendment right and refuse to testify.
    Answer Applies to: California
    Replied: 6/30/2011
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